Separacin de poderes

British Railways Board v Pickin

British Railways Board v Pickin.

HOUSE OF LORDS.
BRITISH RAILWAYS BOARD AND OTHERS.
v.
PICKIN.
Lord Reid.
Lord Morris of Borth-y-Gest .
Lord Wilberforce.
Lord Simon of Glaisdale.
Lord Cross of Chelsea.
Lord Reid.
MY LORDS,.
Our Railway system was built up piecemeal during the nineteenth century.
Generally promoters obtained from Parliament private Acts authorising com- paratively short
stretches of Railway and giving compulsory powers to acquire the necessary land. Before 1845
there was no uniformity in the provision of these Acts but many, we were informed about a
hundred, contained provisions to the effect that if the proposed railway was abandoned or
discontinued the land acquired for it would revert to the owners for the time being of adjoining
land. If the land on opposite sides of the railway had different owners each would get half of the
railway land between their properties. Apparently such provisions were no longer inserted in
private Bills after 1845.
The Appellants' title to a substantial amount of their railway land flows from these old pre-1845
Acts. When, some years ago, it became evident that numerous stretches of railway would have
to be closed down, they realised that some of these old reverter provisions would take effect
unless they obtained new rights from Parliament. So they promoted a Bill which, on 26th July,
1968, became the British Railways Act, 1968. Chapter xxxiv, section 18, of that Act provides:
" 18.(1) As from the passing of this Act, the provisions to which " this section applies shall not
apply to any lands vested in the Board.
" (2) This section applies to any provision in an enactment to the " effect that, if at any time after
the coming into force of that pro- " vision a railway or part of a railway shall be abandoned or
given " up, or if after the same shall have been completed it shall cease " (whether for a specified
period or not) to be used or employed as a " railway, the lands taken for the purposes of such
railway or part " of a railway, or over which the same shall pass, shall vest in the " owners for the
time being of the adjoining lands, being a provision " in an enactment relating to an existing or
former railway or part " of a railway comprised in the undertaking of the Board and not being " a
provision for the protection or benefit of a named person or the " successors of a named person
or for the protection of the owner, " lessee or occupier of specified lands." For reasons which will
appear later it would not be proper to make any decision as to the proper construction of that
section. But I can say that at first sight it appears to take away without compensation all rights of
adjoining owners to a reversion of land to them on the closing down of any part of our railway
system.
The Respondent is interested in the preservation of railways and in order to be in a position to
test the Appellants' right in court he took advantage of the closing of the Clevedon Yatton branch
line in Somerset, and on 20th October. 1969, purchased for ten shillings from the owner of lands
adjoining the railway ". . . ALL THAT his estate and interest in All that piece of land " and track
formerly part of the Yatton to Clevedon Branch Railway " Line of British Rail Together with the
fixtures and appurtenances " attached thereto including the metal rails the sleepers and the
ballast " laid on the said track TO HOLD the same unto the Purchaser in " fee simple ".
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British Railways Board v Pickin

2.
Then on 23rd October, 1969, he raised the action with which we are concerned. He founds on
section 259 of the Bristol and Exeter Railway Act, 1836, which is in these terms: " If the said
Railway or any part thereof shall at any time hereafter " be abandoned or given up by the said
Company, or after the same " shall have been completed shall for the space of three years cease
to " be used and employed as a Railway, then and in such case the " lands so purchased or
taken by the said Company for the purposes " of this Act, or otherwise the parts thereof over
which the said Rail- " way or any part of such railway which shall be so abandoned or " given up
by the said Company shall pass, shall vest in the owners " for the time being of the land adjoining
that which shall be so " abandoned or given up in the manner following; (that is to say) One "
moiety thereof in the owners of the land on the one side, and the " remainder thereof in the
owners of the land on the other side thereof." He has two alternative grounds of action. First he
says that under section 259 this piece of railway land reverted to his predecessor in title and now
belongs to him because, on the facts, this section came into opera- tion before the passing of the
1968 Act which repealed it. That is denied by the Appellants and admittedly that issue must go to
trial whatever be the outcome of the present case.
The Respondent's alternative ground of action is not easy to state con- cisely. He appears to
allege that in obtaining the enactment of section 18 of the 1968 Act in their favour they
fraudulently concealed certain matters from Parliament and its officers and thereby mislead
Parliament into granting this right to them.
This case arises because by Summons of 18th January, 1972, the Appellants sought an Order
that part of the Respondent's pleadings be struck out under Order 18, Rule 19, on the ground
that it is frivolous and vexatious and that it is an abuse of the process of the Court. Thereupon by
order of the Master in Chambers of 21st February, 1972, paragraphs 3 and 4 of the
Respondent's amended reply were struck out. These were the parts which raised the
Respondent's alternative grounds of action. An appeal to Chapman J. was dismissed. But a
further appeal to the Court of Appeal was allowed on 3rd October, 1972, and the Appellants now
appeal to this House to have the order of the Master restored.
I do not think it necessary to set out these paragraphs in full because admittedly the position
now is that if by amendment of these paragraphs the Respondent can plead an arguable case he
is entitled to succeed and to have this issue sent to trial, As the Respondent's case developed in
argument it appeared that he seeks one or other of two methods of relief against section 18. First
he says that section 18 confers a benefit on the Appellants and that if he can prove that
Parliament was fraudulently misled into enacting this benefit the Court can and should disregard
the section. And, secondly, he says that even if the Court cannot do that and the section has
taken effect, the Court can on proof that Parliament was so misled nullify the resulting benefit to
the Appellants by requiring them to hold in trust for him the benefit which the section has given to
the Appellants to his detriment.
The idea that a Court is entitled to disregard a provision in an Act of Parliament on any ground
must seem strange and startling to anyone with any knowledge of the history and law of our
Constitution, but a detailed argument has been submitted to your Lordships and I must deal with
it.
I must make it plain that there has been no attempt to question the general supremacy of
Parliament. In earlier times many learned lawyers seem to have believed that an Act of
Parliament could be disregarded in so far as it was contrary to the law of God or the law of
nature or natural justice but since the supremacy of Parliament was finally demonstrated by the
Revolution of 1688 any such idea has become obsolete.
3.
The Respondent's contention is that there is a difference between a public and a private Act.
There are of course great differences between the methods and procedures followed in dealing
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British Railways Board v Pickin

with public and private Bills, and there may be some differences in the methods of construing
their provisions. But the Respondent argues for a much more fundamental difference. There is
little in modern authority that he can rely on. The mainstay of his argument is a decision of this
House, Mackenzie v. Stewart in 1754.
The case is reported in Morisons Dictionary of Decisions 7443 and 15459 and in this House 1
Paton, 578, and a number of documents in connection with this case have been preserved. The
facts are not altogether clear but I think I can state them in this way. In 1688 the Earl of Cromarty
disponed the lands of Royston to his third son Sir James Mackenzie (who became Lord Royston)
and the heirs male of his body whom failing, to his second son Sir Kenneth Mackenzie and the
heirs male of his body whom failing, to other substitutes. This was a strict entail containing
prohibitory irritant and resolutive clauses against altering the order of succession, contracting
debts and selling or disponing the lands. The deeds contained a provision obliging Sir James and
the heirs of entail to pay 20,000 Merks to Lady Anne Mackenzie. This debt appears to have been
paid or discharged.
Lord Royston wanted to free himself from the fetters of the entail. To do that he had to get an Act
of Parliament which authorised the sale of the lands. To get such an Act he had to shew that the
lands were so burdened with debts that selling them and paying off the debts was the only or at
least the best way of dealing with the situation. In fact, the lands were not burdened with any
debts. So he was a party to the creation of a fictitious bond antedated to 1688 in favour of Lady
Anne for 20,000 Merks and, in a manner not clear, he made it appear that a bond in favour of
Lundie for 8,250 Merks was a valid burden on the lands. Further he made it appear that there
were large arrears of interest on these bonds so that in all 51,350 Merks Scots or 2,852 sterling
was recoverable out of the estate.
Then he succeeded in 1739 in obtaining the Act 12 Geo. II, chap. vii.
The Act in a long preamble narrated the existence of those debts and stated that it would be for
the advantage of all concerned that the lands should be sold and the debts paid. Then it enacted
that the land should be sold and " that the Monies arising by such Sale or Sales, should be
vested in, " and settled upon, and the same were thereby vested in the said Trustees, " or any
two or more of them, or the Survivor, or any two or more of " them, should and would,
immediately after such Sale or Sales, or as " soon after as conveniently might be, apply and
dispose of the Monies " arising by such Sale or Sales, in the first Place, for paying and defray- "
ing the Charges and Expenses attending the passing this Act; and " afterwards, and in the next
place, to pay off and discharge the said " Sum of 51.350 Merks Scots, or 2852. 15s. 6d. Sterling
with which the " said Premises stood then charged and incumbered as aforesaid, with " the
Arrears of Interest; and should, with the like Privity and Consent.
" lay out the Residue and Surplus of the Money arising by such Sale, " in the Purchase of other
Lands and Hereditaments in Fee Simple ; " and which said other Lands and Hereditaments so to
be purchased.
" should immediately after such Purchase or Purchases as aforesaid, " be settled, disponed, and
provided to and for the Use and Behalf of the " said Sir James Mackenzie of Royston, and the
other surviving Heirs " of Entail, according to the different Rights and Interests, and in the " same
Order and Course of Succession, secured, ascertained, and estab- " lished to and for them
respectively in and by the said Deed of Tailzie, " as far as the same might be capable of taking
Effect, with the Powers.
" and subject to the Restrictions and Limitations therein contained ; and " in the mean time, until
such Purchase could be made, to place out " such Residue or Surplus at Interest upon real or
other sufficient " Security." 4.
Lord Royston had so contrived matters that the beneficial interest in these supposed debts had
vested in himself. So when the lands were sold he simply put the purchase price in his own
pocket.
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British Railways Board v Pickin

Some time after Lord Royston's death, Sir Kenneth Mackenzie who would have been the heir of
entail in possession if the lands had not been sold brought an action against Stewart the
grandson and heir of Lord Royston requiring him to account for the money which Lord Royston
had wrongfully obtained. In the Court of Session Stewart did not attempt to dispute these facts.
His plea was that Parliament had found the facts narrated in the preamble to be true and that it
was incompetent for any Court to reopen the matter. Mackenzie's plea was that the Act did not
require these debts to be paid whether due or not.
" Had the Act of Parliament said, that these Sums should be paid " to the nominal Creditors,
whether they were Creditors or not, the " Pursuer would not pretend to dispute the Authority of
Parliament.
" But the Act has neither said so, nor was it so intended by the " Legislature." 1 quote from the
Information, a written pleading submitted to the Court of Session.
It is rare to find any reasons reported for decisions of that period and there is no report of
anything except the Interlocutor of the Court of Jst July, 1752.
" The Lords found. That those debts that, by act of Parliament, " are appointed to be paid out of
the price of the estate of Royston " must be stated to exhaust the said price; and that, the price of
the " estate being exhausted by those debts, there is no ground for a further " count and
reckoning." We have the Cases submitted by the parties when the case was appealed to this
House. They are not so clear as the pleadings in the Court of Session but they appear to me to
raise the same arguments.
The Journals of the House of Lords of 14th March, 1754. state that the case was argued in two
days and set out the Order of the House.
" It is ORDERED and Adjuged, by the Lords Spiritual and Temporal " in Parliament assembled.
That the said Interlocutor complained of " in the said Appeal be, and the same is hereby,
reversed ; and that the " Interlocutor of the Lord Ordinary, of the 20th of January 1747, be, " and
the same is hereby, affirmed: And it is hereby further ORDERED, " That the Court of Session in
Scotland do proceed thereupon, accord- " ing to Justice and the Rules of that Court, without
Prejudice to any " Question that may hereafter arise, concerning the Relief to which " the
Appellant may be entitled, and against what Persons or Subjects " such Relief (if any) ought to
be extended." The Interlocutor of the Lord Ordinary referred to allowed Mackenzie to prove that
the debts narrated in the Act were fictitious.
At that period there were no contemporary reports of Scots appeals in this House. It would seem
that quite often no other peer with legal experience sat with the Lord Chancellor and it seems to
me to be probable that frequently no formal speech giving reasons was made at the conclusion
of the argument. In comparatively few cases there have been preserved observations made in
the House: sometimes these appear to have been observations made in the course of the
argument. In the present case we have a note made by Lord Kames in his Select Decisions
reported in Morison at p. 7445:
" The Lord Chancellor, in delivering his opinion, expressed a good " deal of indignation at the
fraudulent means of obtaining the act; and " said, that he never would have consented to such
private acts, had he " ever entertained a notion that they could be used to cover fraud." 5.
Lord Kames' Select Decisions cover the earlier period of his long tenure of office as a judge. We
do not know how he came to add this passage at the end of his report of the case in the Court of
Session. He must have got it, perhaps at second hand, from someone present during the
arguments: so these observations may have been made during the argument or in a speech.
Lord Hardwicke was, I think, Lord Chancellor both in 1754 and in 1739 when the Act was
passed, so he may have had some part in passing the Act. In any case I do not read his
observations as indicating the ground of decision but rather as a comment on what took place
when the Act was passed.
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I must notice some other comments in the case made within a few years after its decision. Lord
Elchies in an appendix to a work on Tailzie says with regard to the case (No. 46): " vide Lord
Chancellor's speech with the " cases by which it seems that notwithstanding such private acts
fraud either " in obtaining them or in the execution may be tried as well as in private " contracts ".
Again, we do not know what information Lord Elchies had about the case. The facts must have
been generally known but no detailed account of proceedings in this House would have been
available.
We were also referred to some observations by the judges who took part in the Magistrates of
Dumbarton v. Magistrates of Glasgow (1771) M. 14769.
Lord Hailes in his Reports at p. 446 gives short notes of the opinions of the judges who sat with
him in hearing the case. Lord Kames is reported as saying:
" In the case of Royston an Act of Parliament said that debts were " true debts. The Courts here
would not find the contrary. But this " judgment was reversed upon Lord Hardwick's opinion "
and the Lord President is reported as saying:
" The case of Roystoun is not in point; for there was a private Act " of Parliament upon a false
narrative. The heir of entail was found " to have right to the value of the subject, because the
debts of the " entailer were fictitious. Yet still the Court could not have stopped " the execution of
the Act of Parliament because it proceeded upon a " false narrative." I do not think that any of
these observations can be relied on as indicating what was Lord Hardwicke's ground of
judgment.
My noble and learned friend, Lord Wilberforce, has dealt with Blackstone's comments on the
case. He gives no citation except the Journal of this House and it is impossible to get from the
entry which I have quoted any indication of the grounds of the judgment.
It appears to me that far the most probable explanation of the decision is that it was a decision
as to the true construction of the Act. The operative provision was " to pay off and discharge the
said sum of 51,350 Merks Scots " or 2.582 Sterling with which the said premises stood then
charged and "encumbered as aforesaid with the arrears of interest." This is I think easily
susceptible of the construction that if there were no sums with which the premises were
encumbered then there was nothing to pay off. There was no direction to pay off anything except
encumbrances and if there were no encumbrances the direction had no operative effect. That
was the argument for Mackenzie and it seems to me much more likely that Lord Hardwick
adopted it than that he laid down some new constitutional principle that the Court had the power
to give relief against the provision of a statute.
If the decision was only as to the construction of a statutory provision that would explain why the
case has received little attention in later cases.
I do not think it necessary to refer to the few later references to the case which have been
unearthed by the researches of counsel. And I shall not repeat what is said by my noble and
learned friends about other cases relied on by the Respondent. If Mackenzie v. Stewart is found
to afford no support to the Respondent's argument the rest of the authorities are negligible.
6.
In my judgment the law is correctly stated by Lord Campbell in Edinburgh and Dalkeith Railway
Co. v. Wauchope (1842) 8 Cl. & F. 710; 1 Bell 252. Mr. Wauchope claimed certain wayleaves.
The matter was dealt with in a private Act. He appears to have maintained in the Court of
Session that the provisions of that Act should not be applied because it had been passed without
his having had notice as required by Standing Orders. This contention was abandoned in this
House. Lord Brougham and Lord Cottenham said that want of notice was no ground for holding
that the Act did not apply. Lord Campbell based his opinion on more general grounds. He said:
" My Lords, I think it right to say a word or two before I sit down, " upon the point that has been
raised with regard to an act of Parliament " being held inoperative by a court of justice because
the forms, in " respect of an act of Parliament, have not been complied with. There " seems great
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reason to believe that notion has prevailed to a consider- " able extent in Scotland, for we have it
here brought forward as a " substantive ground upon which the act of the 4th and 5th William "
the Fourth could not apply: the language being, that the statute of " the 4th and 5th William the
Fourth being a private act, and no " notice given to the pursuer of the intention to apply for an act
of " Parliament, and so on. It would appear that that defence was " entered into, and the fact was
examined into, and an inquiry, whether " notice was given to him personally, or by advertisement
in the " newspapers, and the Lord Ordinary, in the note which he appends " to his interlocutor,
gives great weight to this. The Lord Ordinary " says ' he is by no means satisfied that due
parliamentary notice was " ' given to the pursuer previous to the introduction of this last act.
" ' Undoubtedly no notice was given to him personally, nor did the " ' public notices announce any
intention to take away his existing " ' rights. If, as the Lord Ordinary is disposed to think, these
defects " ' imply a failure to intimate the real design in view, he would be " ' strongly inclined to
hold in conformity with the principles of Donald, " ' 27th November, 1832, that rights previously
established could not " ' be taken away by a private act, of which due notice was not given " ' to
the party meant to be injured.' Therefore, my Lord Ordinary " seems to have been most distinctly
of opinion, that if this act did " receive that construction, it would clearly take away the right to "
this tonnage from Mr. Wauchope, and would have had that effect if " notice had been given to
him before the bill was introduced into " the House of Commons ; but that notice not having been
given, it " could have no such effect, and therefore the act is wholly inoperative.
" I must express some surprise that such a notion should have prevailed.
" It seems to me there is no foundation for it whatever; all that a " court of justice can look to is
the parliamentary roll; they see that an " act has passed both Houses of Parliament, and that it
has received " the royal assent, and no court of justice can inquire into the manner " in which it
was introduced, or what passed in parliament during the " various stages of its progress through
both Houses of Parliament. I " therefore trust that no such inquiry will hereafter be entered into in
" Scotland, and that due effect will be given to every act of Parliament, " both private as well as
public, upon the just construction which appears " to arise upon it." No doubt this was obiter but
so far as I am aware no one since 1842 has doubted that it is a correct statement of the
constitutional position.
The function of the Court is to construe and apply the enactments of Parliament. The Court has
no concern with the manner in which Parliament or its officers carrying out its Standing Orders
perform these functions. Any attempt to prove that they were misled by fraud or otherwise would
neces sarily involve an enquiry into the manner in which they had performed their functions in
dealing with the Bill which became the British Railways Act, 1968.
7.
In whatever form the Respondent's case is pleaded he must prove not only that the Appellants
acted fraudulently but also that their fraud caused damage to him by causing the enactment of
section 18. He could not prove that without an examination of the manner in which the officers of
Parlia- ment dealt with the matter. So the Court would, or at least might, have to adjudicate upon
that.
For a century or more both Parliament and the Courts have been careful not to act so as to
cause conflict between them. Any such investigations as the Respondent seeks could easily lead
to such a conflict, and I would only support it if compelled to do so by clear authority. But it
appears to me that the whole trend of authority for over a century is clearly against permitting
any such investigation.
The Respondent is entitled to argue that section 18 should be construed in a way favourable to
him and for that reason I have refrained from pronouncing on that matter. But he is not entitled to
go behind the Act to shew that section 18 should not be. enforced. Nor is he entitled to examine
proceedings in Parliament in order to shew that the Appellants by fraudulently misleading
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Parliament caused him loss. I am therefore clearly of opinion that this appeal should be allowed
and the judgment of Chapman J. restored.
Lord Morris of Borth-y-Gest.
My lords,.
The question which is before us is whether paragraphs 3 and 4 of the Amended Reply should be
struck out in accordance with the Order made by the Master and affirmed by the Judge. There
are certain issues of fact in the action which are not affected by those paragraphs. The Plaintiff
asserts that the provisions of section 259 of the Bristol and Exeter Railway Act. 1836, were
applicable to the track of the Clevedon-Yatton Railway line and that the Railway was abandoned
or given up or for three years had ceased to be used and that as a consequence a very small
part of the track came into the ownership of a Mr. Keevill who for a consideration of ten shillings
sold that part to the Plaintiff on the 20th October, 1969. If certain issues of fact are decided
adversely to the Plaintiff then he will be in great difficulty if, as the British Railways Board assert,
the provisions of section 259 ceased to apply to the track as from the 26th July, 1968, as a result
of the enactment on that date of the British Railways Act, 1968.
Section 18(1) of that Act is in the following terms :- " As from the passing of this Act, the
provisions to which this " section applies shall not apply to any lands vested in the Board."
Subsection (2) appears to describe such provisions in such a way as to include section 259.
In their defence to the Plaintiff's claims in the action British Railways Board have pleaded that in
so far as the Plaintiff's purported ownership of the piece of land in question was alleged to rest
on the provisions of section 259 his claim to ownership was invalid by reason of the provisions of
section 18 of the Act of 1968. It was in order to meet the prospect of defeat by reason of those
provisions that paragraphs 3 and 4 of the Reply were drafted.
In my view, it is beyond question that the substance of the plea advanced by the two paragraphs
is that the Court is entitled to and should disregard what Parliament has enacted in section 18.
The question of fundamental importance which arises is whether the Court should entertain the
proposition that an Act of Parliament can so be assailed in the Courts that matters should
proceed as though the Act or some part of it had never been Passed. I consider that such
doctrine would be dangerous and impermissible.
It is the function of the Courts to administer the laws which Parliament 8.
has enacted. In the processes of Parliament there will be much considera- tion whether a Bill
should or should not in one form or another become an enactment. When an enactment is
passed there is finality unless and until it is amended or repealed by Parliament. In the Courts
there may be argument as to the correct interpretation of the enactment: there must be none as
to whether it should be on the statute book at all.
In paragraph 3 of the Amended Reply there is an allegation that a recital in the preamble was
false. Whether on a fair reading of the whole Act this is arguable has not now to be decided.
There follows an allegation of fraud (i.e. that the British Railways Board knew that there was a
false recital) and an allegation that no notice was given of " intended compulsory " acquisition ".
Whether or not it is apt to describe the effect of section 18 as compulsory acquisition does not
now arise. But whether or not there are any points of construction of the Act that can be
formulated, what paragraph 4 of the Amended Reply proceeds to assert is (a) that the British
Railways Board broke the standing orders of Parliament and (b) failed to comply with the
standing orders of Parliament and (c) included a misleading preamble and (d) " misled
Parliament " and (e) obtained ex parte as an unopposed Bill an Act which was solely for their
benefit, and that as a result " the Act is ineffective to deprive the Plaintiff of his land and
proprietary " rights " and furthermore that the British Railways Board " cannot rely " on the Act.
Though here and there in the two paragraphs there occurs the word " construction " I do not
think that it can be doubted that the effect and the purpose of the two paragraphs is to assert that
the Courts could and should for the reasons which I have set out under (a) to (e) above disregard
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certain enacting provisions of the Act which is cited as the British Railways Act, 1968, and which
as is recited in the Act was "enacted by the Queen's most " Excellent Majesty, by and with the
advice and consent of the Lords " Spiritual and Temporal, and Commons, in this present
Parliament " assembled, and by the authority of the same." While any legitimate point may be
taken as to the proper construction of what Parliament has enacted I have no doubt that
paragraphs 3 and 4 of the Amended Reply should not be allowed to stand inasmuch as they
assert and claim the exercise by the Courts of a power to disregard what Parliament has
enacted.
There is a clear distinction between recitals to an Act which are mere recitals and the enacting
provisions of an Act. The recitals may be examined when the enacting provisions are being
construed but even if in some particular instance the recitals to an Act were thought to be faulty
that would give no warrant for disobeying or ignoring or varying the clear enacting provisions of
an Act.
Nor, in my view, should any redrafted pleading be allowed which revives in altered form an
attack upon the validity of the enacting provisions of an Act of Parliament. Nor, in my view, should
the same attack be allowed in shrouded form by asserting that if the Act is effective and if as a
conse- quence some rights were taken away from some people, British Railways Board should
hold their lands subject to some style of burden or equity on the basis that Parliament ought not
to have enacted as it did and only did so enact as a result of what the two paragraphs of the
Amended Reply alleged.
We are not in the present case concerned with any question as to any possible personal rights
resulting from some contract or arrangement made between parties in relation to or in connection
with some prospective legislation.
The conclusion which I have reached results, in my view, not only from a settled and sustained
line of authority which I see no reason to question and which I should think be endorsed but also
from the view that any other conclusion would be constitutionally undesirable and impracticable.
It must surely be for Parliament to lay down the procedures which are to be followed before a Bill
can become an Act. It must be for Parliament to decide 9.
whether its decreed procedures have in fact been followed. It must be for Parliament to lay down
and to construe its standing orders and further to decide whether they have been obeyed: it must
be for Parliament to decide whether in any particular case to dispense with compliance with such
orders.
It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form
and with the wording set out in the Act. It must be for Parliament to decide what documentary
material or testimony it requires and the extent to which Parliamentary privilege should attach. It
would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry
concerning the effect or the effectiveness of the internal procedures in the High Court of
Parliament or an enquiry whether in any particular case those procedures were effectively
followed.
Clear pronouncements on the law are to be found in a stream of authorities in the 19th century.
In Edinburgh Railway Co. v. Wauchope in (1842) 8 Cl. & F. 710 points of construction called for
decision but in the course of the proceedings a point was taken to the effect that a private Act
which affected a vested right could not be made applicable to a person who had had no notice
served upon him of the introduction of the Bill. Though the point was abandoned in this House
Lords Brougham, Cottenham and Campbell felt that it was important to make it clear that any
such doctrine was wholly without foundation. Lord Campbell expressed his surprise that such a
notion should ever have prevailed.
" There is no foundation whatever for it. All that a Court of " Justice can do is to look to the
Parliamentary roll: if from that it " should appear that a bill has passed both Houses and received
the " Royal Assent, no Court of Justice can inquire into the mode in " which it was introduced into
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Parliament, nor into what was done " previous to its introduction, or what passed in Parliament
during its " progress in its various stages through both Houses. I trust, therefore, " that no such
inquiry will again be entered upon in any Court in " Scotland, but that due effect will be given to
every Act of Parliament, " private as well as public, upon what appears to be the proper "
construction of its existing provisions ".
In pursuance of that pronouncement were the words of Cockburn C.J.
when in 1859 in The Earl of Shrewsbury v. Scott 6 C.B. (N.S.) 1 he said (at p. 160) " These
observations illustrate the question which is now before us.
" and make it clear that, if an act of parliament, by plain, unambiguous, " positive enactment,
affects the rights even of parties who were not " before the House (those parties being clearly
pointed out by the bill, " and expressly excepted from the saving clause), it is not for a court " of
law to consider whether the forms of parliament have been pursued, " whether those provisions
which the wisdom of either House of " Parliament has provided for the prevention of any
deception on itself.
" or of injury to the rights of absent parties, have been followed: it is " enough for us if the
provisions of the act are clear, express, and " positive: if they are, we have only to carry the act
into effect." In the earlier case of Waterford Railway Company v. Logan 14 Q.B. 672 the Court
disallowed a plea that an Act of Parliament was obtained by the fraud of the Plaintiffs.
Of equal clarity was the passage in the judgment of Willes J. in 1871 when in Lee v. Bude and
Torrington Junction Railway Co. L.R. 6 C.P. 576 (in which case it was alleged that Parliament had
been induced to pass an Act by fraudulent recitals) he said (at p. 582) " Are we to act as
regents over what is done by parliament with " the consent of the Queen, lords and commons? I
deny that any such " authority exists. If an Act of Parliament has been obtained " improperly, it is
for the legislature to correct it by repealing it: but, " so long as it exists as law. the Courts are
bound to obey it. The " proceedings here are judicial, not autocratic, which they would be if " we
could make laws instead of administering them." 10.
In Labrador Company v.. The Queen [1893] A.C. 104 Lord Hannen in delivering the Judgment
of the Privy Council said (at p. 123):
" Even if it could be proved that the legislature was deceived, it would " not be competent for a
court of law to disregard its enactments. If " a mistake has been made, the legislature alone can
correct it." This statement of principle was accepted and applied in the Judgment of the Privy
Council in Tukino v. Aotea District Maori Land Board [1941] A.C. 308 (see p. 322) where Viscount
Simon L.C. in delivering the Judgment of the Board further said " It is not open to the court to
go behind what has been enacted by " the legislature, and to inquire how the enactment came to
be made.
" whether it arose out of incorrect information or, indeed, on actual " deception by someone on
whom reliance was placed by it. The court " must accept the enactment as the law unless and
until the legislature " itself alters such enactment, on being persuaded of its error." Unless the
authority of these pronouncements is for some reason to be eroded there cannot be a triable
issue in the Courts whether an Act of Parliament was improperly obtained.
It has, however, been contended that the firm rule that the Courts must accept and give full
binding effectiveness to an Act of Parliament relates only to public general Acts and that this
results from a consideration of the case of McKenzie v. Stewart. The various accounts and
reports of that case were very fully examined in the course of the submissions made in the
present case. Though much documentary material exists there is no record of any reasons which
may have been expressed in this House. Though Blackstone stated somewhat ambiguously that
a private Act obtained upon fraudulent suggestions had "been relieved against". I do not think
that the decision in the case involved that any departure had been made from the enacting
provisions of the Act in question. I have had the advantage of reading and considering the
speech of my noble and learned friend, Lord Reid, with its lull examination of the case and I am
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in entire agreement with the con- clusions expressed. The case gives no basis for any
suggestion that there is any limitation to public general Acts of the rule that the Courts must give
full binding effectiveness to the enacting provisions of an Act of Parliament.
As was said in 1842 in Edinburgh Railway Co. v. Wauchope (supra) due effect must be given to
every Act of Parliament " private as well as public " upon what appears to be the proper
construction of its existing provisions.
The case of Green v. Mortimer (1865) 3 L.T. 642 is no authority to the con- trary. An Act had
included a provision which the Lord Chancellor described as " quite absurd " because it
purported to give the court power to do that which was quite impossible.
In the result I have not been persuaded that any doubt has been cast upon principles which are
soundly directed as being both desirable and reasonable and which furthermore have for long
been firmly established by authority.
1 would allow the appeal and restore the order made by the learned judge.
Lord Wilberforce.
MY LORDS,.
The nature and history of Mr. Pickin's claim in this action, and its legal foundation, have been
stated by my noble and learned friend, Lord Reid.
Clearly this claim to a few yards of one railway line, under an Act of 1836, acquired for 10s. by a
private citizen, against the British Railways Board, fortified by an Act of Parliament of 1968 which
can make claims invalid, which is the very stuff of which constitutional law is made. But I regret
and I use the word because it is legitimate to admire a courageous assertion of individual right
that Mr. Pickin has no case in this respect. The idea, which seems to have had some currency,
mainly in Scotland, that an Act of Parliament, public or private, or a provision in an Act of
Parliament, could be declared invalid 11.
or ineffective in the Courts on account of some irregularity in Parliamentary procedure, or on the
ground that Parliament in passing it was misled, or on the ground that it was obtained by
deception or fraud, has been decisively repudiated by authorities of the highest standing from
1842 onwards. The remedy for a Parliamentary wrong, if one has been committed, must be
sought from Parliament, and cannot be gained from the Courts. The law in my opinion is correctly
summed up in Halsbury's Laws of England 3rd Ed. vol. 36 p. 378 in these words:
" If a Bill has been agreed .to by both Houses of Parliament, and " has received the Royal
Assent, it cannot be impeached in the Courts " on the ground that its introduction or passage
through Parliament, " was attended by any irregularity or even on the ground that it was "
obtained by fraud." The authorities on which this paragraph is based include Edinburgh &
Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & F. 710, Stead v. Carey (1845) 1 C.B. 496, 516,
Waterford Railway Co. v. Logan (1850) 14 Q.B. 672, Lee v. Bude & Torrington Railway L.R. 6
C.P. 576, 592 per Willes J..
Labrador Co. v. The Queen [1893] A.C. 104, 123, Hoani Te Heokeu v.
Actea District Maori Land Board [1941] A.C. 308. I do not quote from these authorities passages
which are well enough known, but I would note that between them they expressly negative the
admissibility in law of every allegation made by the Respondent in the two relevant paragraphs of
his reply. It is to be noticed that in so far as a distinction is sought to be made between public and
private Acts, on which I shall comment later, the first four of those cited were concerned with
private legislation ; that an allegation of a false recital was involved in Lee's case : that in the
same case the allegation was that the recital was false to the knowledge of the plaintiffs who
procured the Act, that an allegation that the Act was obtained by fraud was disallowed in the
Waterford case as well as in Tukino's case and a similar allegation as to suppressio veri or
suggestio falsi was repudiated in Stead v. Carey: that alleged irregularity of procedure was not
admitted in Wauchope's case.
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In this state of authority, it is not surprising that an application was made by the Board to strike
out from Mr. Pickin's pleading (sc. Reply) the two paragraphs attacking the validity or effect of
section 18 of the 1968 Act, nor that the application should be granted by the Master and by the
judge in chambers. But their decision was reversed by the Court of Appeal who considered that
the issue on this point should go to trial. It is clear that the consequence of allowing the trial to
proceed on the basis of the law as stated by the Court of Appeal would be to require the Court to
embark on far-reaching enquiries as to the proceedings in Parliament which led to the
enactment of the 1968 Act. For this reason it was, exceptionally, necessary for this House to
review the matter at the present stage. My Lords, the basis on which the Court of Appeal
thought that it was possible to reopen what would generally be thought to be settled law was that
of one casea Scottish 18th century appeal which came to this House, i" which, as was usual at
the time, no reasons were given for the House's decision. This case is McKenzie v. Stewart. [I do
not overlook that two other cases were cited but these are of no value. Biddulph v. Biddulph
(I790) Cruise Digest, Private Act s. 51, p. 28 is clearly an application of an Act, not "relief"
against an Act. Green v. Mortimer 1865 (13 L.T. 642) was a case Where the Court was directed
to make an estate inalienable so far as its jurisdiction allowedwhich it did not allowa case of
no value for the present purpose.) Even if this case. McKenzie v. Stewart, contained a clear ratio
decidendi, it would be difficult to sustain it against the chain of explicit later decisions from 1842
to 1943. The so-called per incuriam doctrine, to which appeal has been made several times
recently, looks even more sickly when invoked against Lord Cottenham, Lord Brougham, Lord
Campbell, Willes J. and Viscount Simon L.C. But the case itself does not resist examination. Your
Lordships were treated to an exhaustive and certainly 12.
interesting scrutiny of McKenzie v. Stewart in all its stages, through digests, differing reports,
subsequent comments and citations. We examined the parties' contentions in the Court of
Session and in this House. None of this material in the least persuaded me that it will bear the
weight sought to be put upon it, or indeed any weight, or that it justifies a new look at the law.
The Act in question (12 Geo. II c. vii) was an estate Act, the object of which, as stated in the long
title, was to enable entailed lands to be sold for payment of debts and incumbrances affecting
them: a type of Act similar, as Blackstone explains, to a private assurance (see Bl. Comm: 4th
Ed. vol.
2 p. 345 ff.). The result arrived at after lengthy court proceedings was simply to decide that, there
being money in the hands of Lord Royston, arising from the sale, which ought to have been
applied in payment of debts, this money, when it appeared that the debts were fictitious, must be
applied in the purchase of lands, as the residue was directed by the Act to be applied.
One may ask of this, what else should be done? Should Lord Royston be allowed to put the
moneywhich incidentally should have been paid to his trustees and not to him at allin his
own pocket? My noble and learned friend, Lord Reid, has discussed the case more fully and I am
happy to accept his conclusions. Like him I quite fail to understand how this case, with, I repeat,
no reported judgment in this House, can be regarded as any authority for invalidating an Act of
Parliament or any provision in an Act of Parlia- ment. The indignation of Lord Hardwick L.C.,
reported by Lord Kames, at the " fraudulent means of obtaining the Act" is understandable
enough, and so Lord Royston's estate had to account for the money, but that is all.
An attempt to inject authority into McKenzie v. Stewart was made by references to Blackstone
and Sir W. Holdsworth. I have already referred to Blackstone who first commented on it in his 4th
edition (1771). (His first edition (1766) though published well after the House of Lords decision
makes no reference to it.) But he deals with the Actunder a title Alienation by Recordin these
words:
" Acts of this kind are however at present carried on, in both houses, " with great deliberation
and caution ; particularly in the house of lords " they are usually referred to two judges to
examine and report the facts " alleged, and to settle all technical forms. Nothing also is done
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with- " out the consent, expressly given, of all parties in being, and capable " of consent, that
have the remotest interest in the matter: unless such " consent shall appear to be perversely and
without reason withheld.
" And, as was before hinted, an equivalent in money or other estate " is usually settled upon
infants, or persons not in esse, or not of capacity " to act for themselves, who are to be
concluded by this act. And a " general saving is constantly added, at the close of the bill, of the
right " and interest of all persons whatsoever; except those whose consent is " so given or
purchased, and who are therein particularly named ; though " it hath been holden, that, even if
such saving be omitted, the act shall " bind none but the parties. (Co. 138) " A law, thus made,
though it binds all parties to the bill, is yet " looked upon rather as a private conveyance, than as
the solemn act of " the legislature. It is not therefore allowed to be a public, but a mere " private
statute ; it is not printed or published among the other laws " of the session ; it hath been relieved
against when obtained upon " fraudulent suggestions; (Richardson v. Hamilton. Cane. 8 Jan.
1973 " McKenzie v. Stuart. Dom. Proc. 13 Mar. 1754). It hath been holden " to be void if contrary
to law and reason (4 Rep. 12); and no judge or " jury is bound to take notice of it, unless the
same be specially set " forth and pleaded to them. It remains however enrolled among the "
public records of the nation, to be for ever preserved as a perpetual " testimony of the
conveyance or assurance so made or established." The words " it hath been relieved against"
are not precise and must be related to what was done: they are no warrant for a proposition that
the Act in any respect was declared or treated as invalid. Blackstone limits what he says to "
estate Acts " regarded as comparable with private assurances; 13.
it would be surprising if he had not. having regard to his generally strong views as to the
sovereignty of Parliament.
Professor Holdsworth follows his Vinerian predecessor in a more extended passage (Vol. xi. pp.
354 ff) and treats McKenzie v. Stewart in a similar manner. But he does continue with a passage
of some interest in which he refers to the principle applied by courts of equity of imposing a trust
upon rights obtained at law where any undue or unconscientious advantage has been obtained
by the legal owner. He quotes a passage from a speech of Lord Westbury in McCormick v.
Grogan L.R. 4 H.L.97, in the following terms:
" the Court of Equity has, from a very early period decided that even " an Act of Parliament shall
not be used as an instrument of fraud; " and if in the machinery of perpetrating a fraud an Act of
Parliament " intervenes, the Court of Equity, it is true, does not set aside this Act " of Parliament,
but it fastens on the individual who gets a title under " that Act, and imposes on him a personal
obligation, because he applies " the Act as an instrument for accomplishing a fraud. In this way
the " Court of Equity has dealt with the Statute of Frauds, and in this " manner, also, it deals with
the Statute of Wills." This is widely expressed and the context must be understood; the
references, though general, to an Act of Parliament are references to the Wills Act or the Statute
of Fraudspublic Actsand to such equitable doctrines as secret trusts or part performance.
The doctrine may well be admitted that equity, when faced with an appeal to a regulatory public
statute, which requires compliance with formalities, will not allow such a statute (assumedly
passed to prevent fraud) to be used to promote fraud and will do so by imposing a trust or equity
upon a legal right. Moreover, it is settled and wholesome law that, if circumstances are shown
which give rise to an equitable claim by one person against another, by reason of fraudulent or
unconscientious behaviour of that other, equity may impose a trust, or personal obligation, even
when that other has a title at law, or by statute. The first of these propositions, which Lord
Westbury was asserting, has no relevance here. And acceptance of the second goes no way
towards the invalidation, on account of fraud or otherwise, of what Parliament has enacted, if
what is relied upon as founding an equity claim consists of action by way of misleading
Parliament into the passing of the Act. An attack at law is firmly excluded by the basic authorities
and this cannot be remounted by reframing the attack in equitable terms.
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There is no warrant in authority, or, in my opinion, in principle, for allowing a person against the
provisions of a statute to achieve in equity a result which, on the same facts, he cannot achieve
at law. I therefore consider that Mr. Pickin, in paragraphs 3 and 4 of his reply, has no
maintainable or arguable case.
Before I deal specifically with the pleading there are some matters which merit perhaps some
brief supplementary comments. First, I must say that, though for the present purpose, we are
called upon to assume the truth of any facts alleged, I am far from convinced, as a matter of
construction, that there is any substance whatever in the contention that the 5th recital of the
1968 Act was false or misleading in any way. The recital is in the common form of private Acts
which are designed to confer powers to acquire land compulsorily and there seems to be an
obvious distinction between those provisions in the Act which concern " lands authorised to be
acquired " and used " (I quote from the recital), namely, sections 13-17, and section 18 which is
not so concerned and to which, on the face of it, the recital does not refer. For my part, I have
grave doubt whether the necessity to assume the truth of pleaded facts extends so far as to
require the acceptance of an unconvincing argument on construction. But assuming the contrary,
I do not understand how the courts can enquire whether Parliament was misled by this recital
into enacting section 18. How can we know how Parliament understood the recitalwho is "
Parliament" for this purposethe members of both Houses or of either Housethe members of
the Committee on Private Billsthe Counsel who advise the Chairmen of these committees
the officials whose business it is to look at recitals and at the Bill? We know 14.
nothing; and by no process short of summoning some or all of these persons and examining
their records can we find out on what view of the facts or on what consideration of policy section
18 was enacted: yet the plaintiff, in undertaking to show that the recital was false, and that
Parliament was mislead and (presumably) would not have enacted the section had it known the
facts and realised what it was doing, must commit the Courts to the process described. This
analysis of what the plaintiff's contentions involve demonstrates, in my opinion, and validates, the
reasons for the Courts' firm refusal to embark on any enquiry of this kind. To do so involves them
both in a potential clash with Parliament and in a series of steps which can lead to no result.
Secondly, as to the nature of the Act of 1968. This was a private Bill promoted by the British
Railways Board and enacted through Private Bill Procedure. Private Bills have a long history: in
early times they were more numerous than Public Acts. They represented the response of the
King in Parliament to petitions of his subjects, either for relief against some general law, or for the
authorisation to dispose of property by tenants in chief under the feudal system (these categories
are not exhaustive).
At the present time there are various categories some of which, personal bills, concern the rights
of individuals, estate bills being effectively the only survivors ; others affect, in various degrees,
the interests of the public, inasmuch as they authorise the execution of works or the acquisition
of land, or confer general powers (cf. Stead v. Carey p. 522 per Coltman J.). Because of the
pressure on Parliamentary time, a number of modern private bills, promoted by public
undertakings, are not confined to provisions of local application, such as the execution of
specified works, or the acquisition of specified lands, but contain legislation of general
application: for example, Railway Bills have been passed dealing generally with level crossings.
The present Act is of this character; it contains much of a local character; but in addition it
presents, in section 18; an enactment in general terms dealing with a large number of preexisting Acts and affecting railway lines all over the country. It may be questioned whether the
procedure of putting such a clause into a private Bill is desirable or whether, on the contrary,
such a provision ought to be brought in through a public bill, and so exposed to debate and
amendment on the floor of either House. The Courts cannot enter into this debate. But it is open
to them to notice that, even though the Private Bill procedure may, in principle, be inappropriate,
the procedure laid down in Standing Orders of both Houses embodies extensive safe- guards,
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which, if properly used, can prevent any use of that procedure which may be detrimental to the
interest of individuals or of the public.
Whether in any particular case, or in this case, these safeguards were made use of, whether the
attention of Parliament, its committees or officers, was called to the provision in question, or what
decisions (right or wrong) were taken, are not matters into which the Courts can enquire. Private
Acts, such as the Act of 1968, as the authorities already cited show, are as fully Acts of
Parliament as public Acts, and compel acceptance by the Courts, On the legal foundations so
established it is necessary to deal with the pleading. It should be made clear that there are
issues and contentions raised in the action which are perfectly legitimate and which may properly
go to trial. This appeal is only concerned with paragraphs 3 and 4 of the Amended Reply. The
relevant allegations can be stated as the following:
The Act of 1968 contains a false recital, drafted by the British Railways Board, as promoters,
which was known by the Board to be false.
2. Notice was given to adjoining owners of lands which might be effected by section 18; and no
public notice was given of the Board's intended " compulsory acquisition ".
3. For the reasons stated in (1) and (2), section 18 does not in its true construction bar this
action or deprive the plaintiff of his interest in land without compensation.
15.
4. Alternatively, the Board as promoters have broken the Standing Orders of Parliament and
included a misleading preamble and misled Parliament: accordingly, this Act is ineffective to
deprive the plaintiff of his land or proprietary rights and the Board cannot rely on it.
The whole of this is upon the clearest authority which I have stated imper- missible, and unless
capable of amendment must be struck out.
In this House, for the first time, a fresh series of possible amendments was produced in draft
which, it was claimed, showed a maintainable case even if the existing pleading did not. In my
opinion, they are no more sustainable in law than the paragraphs they would replace. The
proposed new paragraph 3 introduced, in support of an argument as to construction, the same
matters, all bearing upon the proceedings in Parliament leading to the enactment of section 18 of
the 1968 Act, as were previously raised. For the reasons already stated, they cannot be regarded
as stating a maintainable case. The proposed new paragraph 4 adduced, in support of a claim to
equitable relief against the Board as promoter of the Bill, the same matters, all related to the
proceedings in Parliament which led to the enactment of section 18, as have already been set
out in new paragraph 3. It was admitted that the only support in law for these contentions was
provided by McKenzie v. Stewart. For the reasons discussed above, I am of the opinion that
McKenzie v. Stewart is no authority for the granting of any such relief, and that no other ground
exists for allowing the case so proposed to be stated to proceed.
I would allow the appeal and restore the judgment of Chapman J.
Lord Simon of Glaisdale.
Mv lords,.
I have had the advantage of reading in draft the speeches prepared by my noble and learned
friends, with which I entirely agreeexcept that I would prefer to be taken as indicating no
opinion whatever on any question of construction that might hereafter arise in this action.
The system by which, in this country, those liable to be affected by general political decisions
have some control over the decision-making is parliamentary democracy. Its peculiar feature in
constitutional law is the sovereignty of Parliament. This involves that, contrary to what was
sometimes asserted before the 18th century, and in contradistinction to some other democratic
systems, the courts in this country have no power to declare enacted law to be invalid. It was
conceded before your Lordships (contrary to what seems to have been accepted in the Court of
Appeal) that the courts cannot directly declare enacted law to be invalid. That being so, it would
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be odd if the same thing could be done indirectly, through frustration of the enacted law by the
application of some alleged doctrine of equity.
A second concomitant of the sovereignty of Parliament is that the Houses of Parliament enjoy
certain privileges. These are vouchsafed so that Parliament can fulfil its key function in our
system of democratic government.
To adapt the words of Lord Ellenborough in Burdett v. Abbott (1811) l4 East, 1152:
" they [the Houses] would sink into utter contempt and inefficiency " without [them]."
Parliamentary privilege is part of the law of the land (see Erskine May's Parliamentary Practice,
18th ed., 1971, ch. v). Among the privileges of the Houses of Parliament is the exclusive right to
determine the regularity of their own internal proceedings (Erskine/May, pp. 176, 195, 197).
" What is said or done within the walls of Parliament cannot be " enquired into in a court of law.
On this point all the judges in the " two great cases which exhaust the learning on the subject "
Burden v. Abbott and Stockdale v. Hansard [(1839) 9 Ad. & E. 1] " are agreed and are emphatic."
16.
(Lord Coleridge C.J. in Bradlaugh v. Gossett (1884) 12 Q.B.D. 271, 275).
The rule, indeed, is reflected in the Bill of Rights, 1688, art. 9, s.l., of which I italicise the words
which are relevant to this appeal:
" That the freedom of speech and debates or proceedings in Parliament " ought not to be
impeached or questioned in any place out of " Parliament".
I have no doubt that the Respondent in paragraphs 3 and 4 of his Reply (even as sought to be
amended) is seeking to impeach proceedings in Parliament, and that the issues raised by those
paragraphs cannot be tried without questioning proceedings in Parliament.
It is well known that in the past there have been dangerous strains between the law courts and
Parliamentdangerous because each institution has its own particular role to play in our
constitution, and because collision between the two institutions is likely to impair their power to
vouchsafe those ' constitutional rights for which citizens depend on them. So for many years
Parliament and the courts have each been astute to respect the sphere of action and the
privileges of the otherParliament, for example, by its sub judice rule, the courts by taking care
to exclude evidence which might amount to infringement of parliamentary privilege (for a recent
example, see Dingle v. Associated Newspapers Ltd. [1960] 2 Q.B. 405). The Respondent to the
instant appeal claimed that he could discharge the onus of proving the allegations in paragraphs
3 and 4 of the Reply merely by reliance on presumptions, so that proceedings in Parliament need
not, so far as he was concerned, be forensically questioned. Even if this were so, it would still
leave unanswered how the Appellant could proceed in rebuttal without calling parliamentary
proceedings in question. I am quite clear that the issues would not be fairly tried without
infringement of the Bill of Rights and of that general parliamentary privilege which is part of the
law of the land.
The Respondent claims, however, that, whatever may be the position as regards a public Act of
Parliament, it is open to a litigant to impugn the validity (or, at least, by invoking jurisdiction in
equity, nullify the operation) of an enactment in a private Act of Parliament. But the
considerations of parliamentary privilege to which I have referred would undoubtedly seem to
extend to Private Bill procedure ; and the authorities to which my noble and learned friends have
adverted are clearly contrary to the Respondent's submissions. What was said in Edinburgh &
Dalkeith Railway Co. v.
Wauchope (1842) 8 Cl. & F. 710 seems to me to be particularly apposite and authoritative: even
though counsel there did not finally venture to argue that the validity of a provision in a private
Act could be impugned on the ground that it had been obtained by fraud, the point was formally
before the House; nor is it possible to conceive that Lord (Tottenham, Lord Brougham and Lord
Campbell were all entirely oblivious to what had appeared in later editions of Blackstone.
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Moreover, the distinction that the Respondent sought to draw between public and private Acts of
Parliament breaks down when one considers that there is a third, intermediate, class of
proceedings in Parliament between PuDlic and Private Billsnamely, Hybrid Bills. These are
Public Bills some provisions of which affect private rights. Those particular provisions are subject
to the procedure of Private Bill legislation; though the Bills finally emerge as public Acts. For the
purpose of his argument counsel for the Respondent sought to distinguish a Hybrid Bill from a
Private Bill on the ground that only the latter had a promoter on whom a constructive trust could
be imposed arising from his having misled Parliament. But it is difficult to see how the position of
a Minister in relation to the Private Bill procedures applicable to a Hybrid Bill differs from that of
the ordinary promoter of a Private Bill.
A further practical consideration is that if there is evidence that Parlia- ment may have been
misled into an enactment, Parliament might well- indeed, would be likely towish to conduct its
own inquiry. It would be 17.
unthinkable that two inquiriesone parliamentary and the other forensic should proceed
concurrently, conceivably arriving at different conclusions; and a parliamentary examination of
parliamentary procedures and of the actions and understandings of officers of Parliament would
seem to be clearly more satisfactory than one conducted in a court of lawapart from
considerations of Parliamentary privilege.
For the foregoing reasons, as well as for those set out in the speeches of my noble and learned
friends, I would allow the appeal. If the Respondent thinks that Parliament has been misled into
an enactment inimical to his interests, his remedy lies with Parliament itself, and nowhere else.
Lord Cross of Chelsea.
MY LORDS,.
The pleas in paragraphs 3 and 4 of the Amended Reply proceed on the assumption that the
rights of reverter which were extinguished by section 18 of the British Railways Act, 1968, were "
lands " which the Act authorised the Board to acquire. That being assumed to be so, it is said
that the sixth recital in the preamble was false since no plans of the lands in respect of which the
rights of reverter existed had been deposited as there alleged.
It is further alleged that the Board knew that the recital was false in this respect, that they broke
the Standing Orders of Parliament and that they misled Parliament. It emerged in the course of
argument that what was meant by this was that by inserting the false recital they induced
Parliament to think that Orders 13 and 27 of the House of Commons Standing Orders relating to
Private Business, which provide that where by a Bill it is proposed to authorise the acquisition of
any land, notice in writing of the proposal shall be given to the persons affected and plans of the
lands in question deposited, had been complied with whereas in fact they had not been complied
with. To my mind, the basic assumption is unjustified. The Act draws a distinction between the
lands and easements referred to in sections 13 and 14 which the Board is authorised to acquire
compulsorily if it wishes to do so (though under section 16 the powers of compulsory acquisition
cease on 31st December, 1971, if not previously exercised) and the rights of reverter which are
automatically extinguished under section 18 on the passing of the Act. The Act does not give to
the Board authority to acquire these rights of reverter so that they would be extinguished if the
Board chose to exercise their power to acquire them but would remain in existence if the Board
chose not to acquire them. The Act simply destroys the rights of reverter, and I cannot believe
that those whose duty it was to consider the Bill in its passage through Parliament could have
thought that the lands referred to in the sixth recital in the preamble included the interests in land
constituted by the rights of reverter or that the servants or agents of the Board who were
responsible for drafting the Bill and representing the Board in its passage through Parliament
however anxious they may have been to secure that the rights of reverter should be extinguished
without notice to those entitled to thementertained the hope that anyone would read the sixth
recital as relating to the rights of reverter as well as to the lands referred to in sections 13 and 14.
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The Court might, I think, have well been justified in striking out paragraphs 3 and 4 of the
Amended Reply on the ground that they contained allegations of fraud which were based on a
false hypothesis and were patently misconceived. But as this point has not hitherto been taken
we must deal with the appeal on the footing that in enacting section 18 of the Act Parliament was
misled by fraudulent misrepresentations made by the Board through its servants and agents.
Even if one makes that assumption I am clearly of opinion that the paragraphs in question
should be struck out. The sheet anchor of the Respondent's argument is, of course, the decision
of this House in Mackenzie v. Stewart (Morison's Dictionary 7443). That case and the cases of
Biddulph 18.
v. Biddulph (5 Cruise Digest, Tit. Private Act, section 53) and Green v.
Mortimer (3 L.T. 642) which were also relied on by the Respondent, all related to Estate Acts.
Such Actsdealing with the property of private individualswere common in the 18th and 19th
centuries but have now become rare owing to the powers to deal with settled estates given to
limited owners by the Settled Land Acts and to the powers now given to the Court by the
Variation of Trusts Act, 1958. To-day such Acts are only called for where the property in question
has been itself settled by Act of Parliament.
The provisions contained in such an Act, obtained at the instance of some of those interested in
the Settled Estate, are obviously analogous to those contained in a disposition inter partes and if
it were the law that, as Blackstone suggests (see Vol. 2, p. 345) a Personal Act can be " relieved
against when " obtained upon fraudulent suggestions ", it would not follow in the least that such
an Act as the British Railways Act, 1968, could be " relieved " against" just because it happened
to be a private and not a public Act.
But I agree with your Lordships that the rule laid down in such cases as Edinburgh and Dalkeith
Railway Company v. Wauchope 8 C. & F. 710 and Lee v. Bude and Torrington Railway L.R. 6
C.P. 576 is applicable to all Acts of Parliament including Estate Acts. I also agree with all that has
been said by my noble and learned friend. Lord Reid, with regard to McKenzie v. Stewart. We do
not know what were the reasons for the decision : the case could easily have been decided on
construction ; and it should be treated as having been so decided. I would say the same of
Biddulph v. Biddulph. Green v. Mortimer does not touch the present problem at all. Parliament
could have empowered the Courts to make the life estate inalienable ; but what it did do was to
empower the Courts to make it inalienable " so far as the rules of law and equity and the
jurisdiction " and the authority of the Court admit". That, as Lord Campbell pointed out, was
absurd since the rules of law and equity and the jurisdiction and authority of the Court did not
give the Court any such power.
Before us Counsel for the Respondent submitted that even if section 18 on its true construction
extinguished the rights of reverter and the Courts were not entitled to " go behind the Act " but
were bound to accept that as a result of it the Board as from the date of its passing held the legal
estate in fee simple in the lands in question free from the right of reverter yet any adjoining owner
who chose to do so could, on proof of the facts alleged in paragraphs 3 and 4 of the Reply,
obtain a declaration that the Board held the legal estate in the strip of line adjoining his land on
trust for him.
This argument adopts the explanation of McKenzie v. Stewart given by Holdsworth History of
English Law Volume XI pages 354-358. Equity, Holdsworth says, while accepting that the Private
Act, although obtained by fraud, gave the promoter the legal estate in the property in question
will not permit it to be used as an instrument of fraud and will force the promoter to hold the
advantage which he has gained by deceiving Parliament on trust for the person defrauded. To
accept this argument would enable the Respondent when he has been refused entry by the front
door to get in by the back. In order to establish the personal equity he would have to prove the
same facts as to the misleading of Parliament as he would have to prove if a direct attack on the
Act were open to him, and the objections which are fatal to a direct attack on the Actnamely,
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that the Court will not enquire into what passed in the course of the passage of the Bill through
Parliamentmust be equally fatal to any attempt to establish the alleged personal equity. I agree
entirely with everything which has been said by my noble and learned friend, Lord Wilberforce,
on this aspect of the case.
Paragraph 3 of the Amended Reply professes to relate only to construction, but the fact that it is
struck out because the matters alleged in it are not admissible in considering the true
construction of the Act will not preclude the Respondent from advancing any arguments on
construction which are legitimately open to him; the striking out of paragraphs 3 and 4 does,
however, entail the consequence that the application for discovery made on 8th December, 1971,
should be dismissed.
19.
I would add in conclusion that the fact that I think, as I stated at the beginning of this speech, that
the allegations of fraud made by the Respondent are misconceived does not mean that I also
think that his sense of grievance that Parliament should by a Private Act have summarily
deprived the adjoining owners of their rights to reverter without notice to them is neces- sarily
wholly unjustified. We do not and cannot know whether the question of giving him notice was
raised during the passage of the Bill. It may have escaped attention ; on the other hand,
Parliament may have addressed its mind to the point and decided that in all the circumstances
the giving of notice was not necessary. That is a matter into which it is impossible for us to
enquire. I would allow the appeal.

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